Seema Bansal vs D.D.A.
2011 Latest Caselaw 3331 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 14th July, 2011

+                              W.P.(C) 7646/2008
       SEEMA BANSAL                                               ..... Petitioner
                   Through:                     Mr. Sumir Bansal & Mr. Vaibhav
                                                Arora, Advocates.
                                      Versus
       D.D.A.                                                    ..... Respondent
                               Through:         Mr. M.K. Singh, Adv.
                                      AND
+                              W.P.(C) 8563/2008
       SUSHIL KUMAR GOEL                                          ..... Petitioner
                   Through:                     Mr. Sumir Bansal & Mr. Vaibhav
                                                Arora, Advocates.
                                      Versus
       D.D.A.                                                    ..... Respondent
                               Through:         Mr. Neeraj Choudhary, Adv.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                             No.

2.     To be referred to the reporter or not?                      No.

3.     Whether the judgment should be reported                     No.
       in the Digest?




W.P.(C) No.7646/2008 & W.P.(C) No.8563/2008                               Page 1 of 6
 RAJIV SAHAI ENDLAW, J.

1. The challenge in these petitions is to the demand of the respondent

DDA for unearned increase. The petitioner in each of the cases is the

purchaser in an auction held in the year 2005 by the Delhi Financial

Corporation (DFC) (not a party in these proceedings) of the plots of land

admeasuring 44 and 50 sq.m. respectively in Pocket-F, PVC Bazar, Tikri

Kalan, Delhi. DFC came to auction the said plots for the reason of the

original allottees of the plots having failed to re-pay the dues of DFC.

The petitioners thereafter as per the terms of the said auction applied to

the respondent DDA for mutation/transfer and execution of lease deed of

the said plots in their favour. The respondent DDA in the year 2007,

communicated the unearned increase payable by each of the petitioners.

Impugning the computation of the said unearned increase, the present

writ petitions have been filed.

2. Though pursuant to the allotment of the plots aforesaid by the

respondent DDA, perpetual lease deed were to be executed but were in

fact not executed. However the terms and conditions of such allotment

inter alia provide as under:-

"(vi) The allottee shall not be entitled to sell, transfer, assign or otherwise part with possession of the whole or part of the plot, before or after the erection of the building on the plot without the previous consent in writing of the lessor. In the event of consent being given, the lessor may impose any condition and also be entitled to claim and recover a portion being 50% of the unearned increase in the value of the land (i.e. difference between the premium paid and the market value of the plot) at the time of sale, transfer assignment or parting with the possession. Provided that the lessor shall have pre-emptive right to purchase the property after deducting 50% of the unearned increase as aforesaid. The pre-emptive right of purchase would be exercise by the lessor as and when the built up space is required in public interest."

3. It is contention of the counsel for the petitioners that the demand

for unearned increase is not as per the aforesaid clause but de hors the

same.

4. The respondent DDA in reply to an RTI query of the petitioners

informed and the same is the stand of the DDA in the counter affidavits

also, that the allotment in Tikri Kalan was on pre-determined rates which

were subsidized rates and that unearned increase is based on average

auction rate of Narela. I have enquired from the counsels for DDA

whether Tikri Kalan forms the part of Narela. They inform that Tikri

Kalan falls in the West District while Narela falls in the North West

District of the city.

5. It is further the stand of DDA that as per the Unearned Increase

Booklet of 1996, the value of plot is worked out on the basis of the

highest rate of the following rates:-

"i) Financial year & Zonal Market rate applicable for calculation of 50% UEI as per average auction rate."

ii) MOUD's market rate for residential/commercial properties applicable for calculating 50%.

iii) Delhi Admn. Market rate for residential/commercial/industrial plots."

6. It is further informed that the market rate of the plots in the present

cases for computation of unearned increase has been arrived at on the

basis of average auction rate of commercial plots and since the average

auction rate of any commercial plot in Tikri Kalan was not available, the

average auction rate of commercial plots in Narela has been considered.

7. The counsels for the DDA have failed to produce before this Court

the Unearned Increase Booklet referred in the reply to the RTI

query/counter affidavit.

8. The terms and conditions of allotment supra do not provide that the

unearned increase would be determined in accordance with the Booklet

aforesaid or any other Rule of the DDA. On the contrary, unearned

increase was agreed to be taken on the basis of the difference between

premium paid for the plot and the market value of the plot. There can be

no better indicator of the market value of the plot than the price which the

plot fetched in the auction held by the DFC. The respondent DDA in its

counter affidavit has not stated any reason whatsoever as to why rate

which the plots fetched in the auction is not the market rate or is a

suppressed rate. The auction as aforesaid was held by DFC and not by

any private person/body.

9. In the circumstances, the demand for unearned increase impugned

in these petitions is found to be in violation of the terms and conditions of

allotment and is set aside.

10. The counsels for the DDA have neither in their counter affidavits

nor otherwise informed the premium paid for each of the aforesaid plots.

The counsel for the petitioners states that since the petitioners are not

original allottee of the plots, they are also not aware of the same.

Accordingly the writ petitions are disposed of with the direction to the

DDA to within eight weeks of today raise a fresh demand on the

petitioners for unearned increase on the basis of the difference between

the premium received at the time of allotment and the price paid by each

of the petitioners in the auction held by the DDA. Since the admitted

amount has also not been paid, it is clarified that the DDA shall be

entitled to claim interest on the unearned increase so found due from the

date of the original demand and till the date of payment of the unearned

increase by the petitioner.

The writ petitions are disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 14, 2011 Bs..